BACKGROUND AND SUMMARY
This matter concerns an urgent application for direct leave to appeal to the Constitutional Court against the judgment of the High Court of South Africa, Western Cape Division, Cape Town (the “High Court”) delivered on 17 April 2019.
On 17 September 2018, the Applicants approached the High Court on an urgent basis seeking an order declaring the Electoral Act 73 of 1993 (the “Electoral Act”) unconstitutional to the extent that it prevents independent candidates from standing for election to the National Assembly and Provincial Legislatures and further sought an order directing Parliament to take all steps necessary to resolve these matters “before the 2019 elections”.
In its answering affidavit before the High Court, the Electoral Commission submitted that it was not practically possible to change the electoral system “before the 2019 elections”. It was in that context that the Applicants amended their notice of motion to remove the reference to the 2019 elections and instead the Applicants requested that Parliament be directed to alter the electoral regime “as soon as possible” (the “First Amendment”). On 17 April 2019, the High Court delivered its judgment dismissing the application on the grounds that the Applicants may establish a political party through which they can stand for election to the Provincial and National Legislatures.
On 18 April 2019, the Applicants launched an urgent application to the Constitutional Court (the “CC”) for direct leave to appeal against the judgment of the High Court. The matter was heard on 2 May 2019. On hearing the matter, the CC requested the parties to limit their submissions to the question of urgency.
Urgent applications are governed by Rule 12 of the Rules of Court. In assessing whether an application is urgent, a court considers various factors, including among others: the consequences of the relief not being granted; whether the relief would become irrelevant if it is not immediately granted; and whether the urgency is self-created. At hearing before the CC, the Applicants further amended their Notice of Motion and the relief sought (the “Second Amendment”). In their Second Amendment, they requested that new ballot papers (to include independent candidates) be printed for the upcoming national and provincial elections. They submitted that should this printing not be possible before the 2019 elections, then the elections should be postponed by this Court. The Applicants invoked section 49 (3) of the Constitution which states that if the Court postpones an election, another election should be held in 90 (ninety) days from the date the decision was taken. The Applicants aver that this would afford Parliament enough time to enact new legislation regulating the right of independent candidates to stand for election.
Upon adjudication of the First Amendment and whether the matter was indeed urgent, the Court held that the Applicants had amended their Notice of Motion before the High Court to remove reference to the 2019 elections. This amendment to the Applicants’ relief was indicative of the fact that the Applicants did not necessarily seek the alteration of the current electoral regime before the 2019 elections. The Applicants also submitted that if the relief they seek is not granted, they would bring an application to review the 2019 national and provincial elections after they had been held. The existence of an alternative relief demonstrates that a refusal by this Court to determine the matter on an urgent basis would be remediable. The Applicants would still be able to challenge the elections and if they succeed, they can ensure that the electoral system could be appropriately amended “as soon as possible”.
Regarding the Second Amendment relating to the printing of new ballot papers or failing which, the postponement of the elections by this Court, the Applicants invoked Section 49 (4) of the Constitution (which provides that the National Assembly remains competent to function until the day before the first day of voting for the appointment of a new Assembly), the Court held as follows:
Whether the Electoral Act is unconstitutional to the extent that it prohibits South African citizens from contesting elections and holding national or provincial public office as independent candidates is a matter of utmost importance. It delves into the ambit of the right to vote and its possible limitations. If the Applicants’ contentions are well-founded, it may mean that all past national and provincial elections took place under an unconstitutional electoral regime.
These are matters which, quite plainly, cannot be considered or determined hurriedly or superficially. The Applicants seek direct leave to appeal to this Court and they seek to have this matter determined before the elections scheduled for 8 May 2019 – which was six days after the hearing of this matter. They do so without properly explaining why this matter cannot be dealt with in the ordinary course. Furthermore, the Applicants have not made out a case on the papers for the printing of new ballot papers or a postponement of the elections – either before the High Court or in this Court. Furthermore, the new case before this court was not the case that the respondents were required to meet. Consequently, the respondents have not had an opportunity to present their defence to this new case before the Court. Moreover, over sixty million ballot papers had already been printed, packaged and distributed across the country. Voting in the elections had already begun – voters outside the country voted on Saturday, 27 April 2019. The Applicants failed to account for whether the postponement of the elections would invalidate the votes of South Africans who had already voted. Furthermore, Section 49(4) of the Constitution provides that the National Assembly remains competent to function until the day before the first day of polling for the next Assembly. It may be that the first day of polling was on Saturday, 27 April 2019, when voters abroad had already cast their votes; in which case the National Assembly would no longer be competent. This is not an aspect that any of the parties had addressed either in their written or oral submissions.
Consequently, the Court was reluctant to pronounce upon complex matters that had not been fully ventilated. The court held that as a result of the consequences of its judgment and the nature of the remedies sought by the Applicants, the matter could not be heard on an urgent basis. The Applicants would further suffer no prejudice should this matter be heard in the ordinary course since the relief sought on the papers did not impact the impending elections, and will further not become irrelevant should it be granted after the 2019 elections. At the end of the hearing, the Court concluded that the Applicants had failed to make out a case for an urgent hearing and adjourned the matter to 15 August 2019.
|In determining the urgency of a matter, where the challenge could and should have been brought earlier, a litigant must provide facts covering the entire period of delay, explaining why the challenge could not have been brought earlier. Failure to do so may well result in the refusal of the relief sought.|
Written by Khotso Mmatli and supervised by Dingumuzi Ndhlovu